Introduction
Should it be possible to take a case seeking to uphold a finding of a Declaration of Inconsistency with the Bill of Rights Act in relation to the main gender bills that disadvantage women, children and lesbian and gay people?
This is speculative piece and I would be interested in comments. It seems a new law provides some previously impossible opportunities to challenge law. To get the full picture read the article linked here to see some background on the legislation and how it is being used in New Zealand here.
When new legislation is drafted officials government officials are given the task of summarising any impacts that it will have which curtail rights that can be exercised based on the New Zealand Bill of Rights Act (BORA). If such impacts are present, they need to explain why they were required, despite limiting BORA protections. Sometimes this is done in what is arguably good faith, as with the Conversion Practices Prohibition Bill where it was proposed that rights were curtailed, but they were balanced by the high bar to prosecution, and the harms of conversion practices. This is not always the case though. For example the officials who oversaw the Births, Deaths, Marriages and Relationships Registration Legislation simply refused to countentance any BORA curtailment of rights even though they had received a paper from Crown Law advising that the new law would not allow differentiation between sex and self-identified sex/gender with obvious impacts on law that protected women and gay people. However, if it follows recent behaviour (see also here) there is scant likelihood that the Human Rights Commission would intervene in such cases, whatever their merits, on matters related to women’s rights and sexual orientation.
Anti Conversion Practices Legislation
In the case of the Conversion Practices Prohibition Legislation (2021) there was extensive documentation of the incursions into the Bill of Rights Act and the officials ruled the constraints were justified. I have identified that there are three possible challenges to this law in relation to the ways it attempts to remove BORA protections.
Discrimination against Sexual Orientation
By applying the law to gender identity, including the idea that ‘children are who they say they are’ and ‘no-one who says they have a gender identity is ever wrong’ and proposing that gender identity is always fixed and not temporary the law prevents the right of a child with a gender identity child to an ‘open future’ and thus fails to protect the child on the Human Rights Act protected ground of their sexual orientation. Adopting a gender identity, and having it legally endorsed by parents, authority figures and clinicians will, in the great majority of cases disrupt the child’s development and push them towards gender transition and a lifetime as a patient when without medical treatment they would have become a gay or lesbian adult. Thus a future which they may have had unharmed by medical intervention has been denied to them. Even if the child would have grown up heterosexual transition will reverse their sexual orientation and push them towards life-long medication.
The right not to face medical experimentation and torture
There are other potential avenues to take a case against gender medicine for children and young people. The BORA contains provisions for people not to be subject to exposed to torture or cruel treatment or to be subjected to medical or scientific experimentation without their consent. Affirming a child in their gender identity, if they are gender confused as the law demands, makes them much more likely to seek social transition and medical treatment with puberty blockers. This could happen when they are 5, 10 or 15. We know young people receiving this treatment may face regret because of the side effects of medication, and when they seek intimate relationships or to become parents.
Gender medicine is not described as ‘experimental’ by its advocates and yet US courts have determined that it is and so did the interim report of the Cass Review into the English gender clinic. Neither is it described as cruel treatment or torture and yet changing the natural development of a child is cruel and the impacts of gender medicine, being a life-long medical patient are indeed torturous.
Freedom of speech and belief for people who disbelieve in gender ideology
There is a third possible challenge. This is because there is a danger that someone telling a person there is no such thing as gender or that no-one is another sex could in theory be prosecuted for essentially not complying with a gender ideology view of the world. If their ideas are presented in the context of a conversation with a person who believes that they are the other sex, or have no sex and are undergoing transition this could be the subject of a conversion therapy complaint. This was clear because the officials wrote up the ways in which the Conversion Practices legislation limits freedom of speech and belief. It clearly does impinge on the Human Rights of New Zealanders to speak freely about gender transition and gender identities.
The Births, Deaths, Marriages and Relationships Registration Legislation
In the case of the BDMRR Bill it could also be possible to challenge that law because it undermines the protections to women and children by allowing males to use the rights that were intended to protect them. As mentioned above the BORA legislative protections are lowered, and even meaningless altogether for women if who is a woman cannot be legally determined. The Department of Internal Affairs simply refused to believe that the change would have any impacts and so did not even bother to address the questions about incursions into Bill of Rights Act protections.
The law also assumes that children and young people are always able to be believed when they ‘say who they say they are’ in relation their gender identity and sex. Providing an altered birth certificate to a child also has the impact of closing down on their open future and making them much more likely to undergo medical transition. What doctor, therapist or psychologist would be willing to go against the self-identified assessment of a child whose parents had also legally changed the child’s birth certificate sex? Clinical professionals would have a high level of concern that they would be criminalised by the parent or another ‘ally’ of the child even though their proper role as a clinician should be to carry out a differential diagnosis of the causes of gender confusion. The child or young person’s developed or developing sexual orientation is negated.
Opportunities for gender critical people to use the Declarations of Inconsistency with the Bill of Rights Act Legislation
Should it be possible to take a case of this kind against the constraints on the Bill of Rights Act in relation to the main gender bills that disadvantage women, children and lesbian and gay people?
As new law is drafted officials have to summarise any impacts that it will have on the BORA and if such impacts are present they need to explain why they were required despite limiting BORA protections. This is not always the case. For example the officials who oversaw the Births, Deaths, Marriages and Relationships Registration Legislation simply refused to countentance any BORA impacts even though they had received a paper from Crown Law advising that the new law would not allow differentiation between sex and self-identified sex/gender with obvious impacts on law that protected women and gay people. However, if it follows recent behaviour there is scant likelihood that the Human Rights Commission would intervene in such cases whatever their merits on matters related to women’s rights and sexual orientation.
Anti Conversion Practices Legislation
In the case of the Conversion Practices Prohibition Legislation (2021) there was extensive documentation of the incursions into the Bill of Rights Act and the officials ruled the constraints were justified because of what they argued were the greater harms of conversion practices. I have identified that there are three possible challenges to this law in relation to the ways it attempt to remove BORA protections.
Discrimination against Sexual Orientation
By applying the law to gender identity including accepting that ‘children are who they say they are’ in terms of their likely temporary gender identity the law prevents the right of a child to an ‘open future’ and thus fails to protect the child on the Human Rights Act protected ground of their sexual orientation. Adopting a gender identity, and having it legally endorsed by parents, authority figures and clinicians will, in the great majority of cases disrupt the child’s unmedicated development which would have seen them become a gay or lesbian adult and push them towards gender transition and a lifetime as a patient. Thus a future which they may have had unharmed by medical intervention has been denied to them. Even if the child would have grown up heterosexual transition will reverse their sexual orientation.
The right not to face medical experimentation and torture
There are other potential avenues to take a case against gender medicine for children and young people. The BORA contains provisions such as the right for people not to be subject to exposed to torture or cruel treatment or to medical or scientific experimentation without their consent. Affirming a child in their gender identity if they are gender confused, as the law demands, makes them much more likely to seek social transition and medical treatment with puberty blockers. This could happen when they are 5, 10 or 15. We know young people receiving this treatment may face regret because of the side effects of medication, especially when they seek intimate relationships or to become parents.
Gender medicine is not described as ‘experimental’ by its advocates and yet US courts have determined that it is and so did the interim report of the Cass Review into the English gender clinic. Neither is it described as cruel treatment or torture and yet changing the natural development of a child is cruel and the impacts of gender medicine, being a life-long medical patient are indeed torturous.
Freedom of speech and belief for people who disbelieve in gender ideology
There is a third possible challenge. This is because there is a danger that someone telling a person there is no such thing as gender or that no-one is another sex could in theory be prosecuted for essentially not complying with a gender ideology view of the world. If their ideas are presented in the context of a conversation with a person who believes that they are the other sex, or have no sex and are undergoing transition this could be the subject of a conversion therapy complaint. This was clear because the officials wrote up the ways in which the Conversion Practices legislation limits freedom of speech and belief. It clearly does impinge on the Human Rights of New Zealanders to speak freely about gender transition and gender identities.
The Births, Deaths, Marriages and Relationships Registration Legislation
In the case of the BDMRR Bill it could also be possible to challenge that law because it undermines the protections to women and children by allowing males to use the rights that were intended to protect them. As mentioned above the BORA legislative protections are lowered, and even meaningless altogether for women if who is a woman cannot be legally determined. The Department of Internal Affairs simply refused to believe that the change would have any impacts and so did not even bother to address the questions about incursions into Bill of Rights Act protections.
The law also assumes that children and young people are always able to be believed when they ‘say who they say they are’ in relation their gender identity and sex. Providing an altered birth certificate to a child also has the impact of closing down on their open future and making them much more likely to undergo medical transition. What doctor, therapist or psychologist would be willing to go against the self-identified assessment of a child whose parents had also legally changed the child’s birth certificate sex? Clinical professionals would have a high level of concern that they would be criminalised by the parent or another ‘ally’ of the child even though their proper role as a clinician should be to carry out a differential diagnosis of the causes of gender confusion. The child or young person’s developed or developing sexual orientation is negated.
In sumary
- There are potential legal avenues for a finding of inconsistency with the BORA that could be taken by women, lesbian or gay people, or by parents of children who the medical system has assessed as transgender.
- Such cases would appear to be able to overturn the BDMRR and/or the Conversion Practices Prohibition legislation with reasoning that is at least as strong as the current case.
- Such a case could apparently be taken by a person even if they are not individually affected by it.
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